Great Lakes Law

New York appeals court upholds state ballast water regulations

We can end the week with some good legal news in the fight against invasive species in the Great Lakes.  A state appeals court in New York has rejected a challenge by shipping interests against the state’s ballast water regulations.  The decision affirms the ruling of the lower court that the state may impose stricter requirements to protect the Great Lakes from ballast water pollution than the federal government’s minimal requirements.  For more background on the case, see the previous guest post by Thom Cmar of NRDC, one of the lead attorneys on the case.  Good work to the NY Attorney General’s office, NRDC, and NWF on this win.

Armed with new economic study, Michigan renews request to the Supreme Court to close Chicago locks and keep Asian carp out of Great Lakes

Michigan Attorney General Mike Cox has just filed a renewed motion with the U.S. Supreme Court for a preliminary injunction to close Chicago-area locks to keep Asian carp from entering the Great Lakes.  The Supreme Court previously denied Michigan’s motion for a preliminary injunction.  However, Michigan relies on new information regarding eDNA tests showing evidence of Asian carp in Lake Michigan, which the federal government failed to disclose to the Supreme Court until after the Court ruled against Michigan.  Michigan also relies on a new study detailing the relatively minimal economic effects of closing the locks to separate the Mississippi River basin from the Great Lakes basin. 

The study, titled “Chicago Waterway System Ecological Separation: The Logistics and Transportation Related Cost Impact of Waterway Barriers” was prepared by Dr. John C. Taylor and James L. Roach.  Dr. Taylor is an Associate Professor of Supply Chain Management at Wayne State University and widely respected expert on the logistics of intermodal transportation (the full study and qualifications of Dr. Taylor are included in the Appendix to Michigan’s Renewed Motion for Preliminary Injunction).  The study concludes that Illinois’ claim that “even a temporary closure of the locks will devastate the local economy” cannot be supported.  It details how statistics submitted to the Court by Illinois and the federal government claiming the potential economic costs of lock closure to be $190 million are “seriously exaggerated” and would only amount to less than $70 million (compared to the billions of dollars at stake if Asian carp enter the Great Lakes).  The study further notes that cargo though the O'Brien Lock is already down 45% in recent years, as canal barge traffic has diminished in its economic importance to the region.  And in response to Illinois’ claims that closing the locks would increase truck traffic (with resulting environmental impacts), the study determined that truck traffic would only increase by 0.1%.  

The tough question is whether this new information about eDNA evidence of Asian carp in Lake Michigan and the minimal economic impact of closing the locks will persuade the Supreme Court, given the federal government’s previous support of Illinois.  The additional filings by Michigan may also persuade the Court to reopen the underlying Wisconsin v. Illinois case (response briefs are due on February 19).  Either way, Attorney General Cox should be commended for using the best available scientific and economic information to persuade the Court to protect the Great Lakes.  Michigan has the law, science, and economics on its side, along with almost every other Great Lakes state and the province of Ontario.  Illinois has the backing of the Obama administration and federal government, at least for now.  But that could change with new information and increased public outcry.  Stay tuned.

President Obama will nominate Lana Pollack for the International Joint Commission

The White House just announced that President Obama will nominate Lana Pollack as a Commissioner on the International Joint Commission.  I’ve known Pollack for many years, going back to her days as a Michigan state senator representing Ann Arbor.  I worked with her while she was president of the Michigan Environmental Council, which she grew into the most effective environmental advocacy organization in the state.  She is one of the most knowledgeable, experienced, and savvy environmental advocates in the region (her full bio is included in the White House announcement).  For what it’s worth, I publicly recommended Pollack for the IJC almost a year ago, and am thrilled to see her nomination for this important position. 

The IJC has some very pressing issues before it, and Pollack would be ready to jump right in with her experience in environmental policy and advocacy.  Secretary of State Hillary Clinton has committed to updating the Great Lakes Water Quality Agreement, and that should be one of Pollack’s priorities on the IJC.  The IJC could help facilitate a solution to the Asian carp crisis, providing both scientific research and a forum to negotiate a long term solution.  The IJC is currently taking public comments on its lake levels study, assessing the extent that climate change, dredging, water use, and natural causes have lowered Great Lakes water levels.  And there are many other transboundary environmental issues between the United States and Canada (such as the impact of mining and refining Canadian tar sands for oil production) that Pollack and the IJC could help solve.  Congratulation Lana, we're lucky to have you. 

CARP ACT introduced in Congress to prevent spread of Asian carp into Great Lakes

New legislation, titled “Close All Routes and Prevent Asian Carp Today” (or CARP ACT), was introduced in the U.S. Senate (S. 2946) and House (H.R. 4472).  The legislation would direct the Army Corps of Engineers to implement many of the same emergency measures to keep Asian carp out of the Great Lakes that Michigan sought in its motion for a preliminary injunction to the Supreme Court.  The lead sponsors are U.S. Senator Debbie Stabenow (D-MI) and U.S. Representative Dave Camp (R-MI).  Despite the bipartisanship, I doubt the CARP ACT will become law, but if Senator Dick Durbin of Illinois wants to “meet in the halls of Congress and come up with a real solution”, at least there is a bill to use.

Feds acknowledge Asian carp DNA in Lake Michigan in letter to the Supreme Court

Just hours after the Supreme Court issued its ruling denying Michigan’s motion for a preliminary injunction to take immediate action to protect the Great Lakes from Asian carp, the federal government acknowledged that Asian carp DNA has now been found in Lake Michigan.  In a letter to the Supreme Court, the Solicitor General stated that positive samples of Asian carp DNA have been found in the Calumet River and Calumet Harbor, past the Army Corps’ electric barrier which is supposed to be keeping the Asian carp out of the Great Lakes.

So with the Supreme Court refusing to order emergency measures through a preliminary injunction, and the feds admitting that more Asian carp DNA has already been found past the electric barriers, what’s next?  On the legal front, Illinois and the United States must file briefs responding to Michigan’s petition to reopen the Wisconsin v. Illinois case by February 19, and a decision by the Court could then come soon after.  On the political front, the chair of the White House Council on Environmental Quality Nancy Sutley has responded to calls by Michigan Governor Jennifer Granholm and Wisconsin Governor Jim Doyle for a summit meeting, now planned for the first week of February.  But as Gary Wilson points out on the Great Lakes Town Hall website, the key White House player on this issue should be Chief of Staff Rahm Emmanuel, who until last year was a Chicago congressman representing a lakefront district.  If Emmanuel is at the meeting, it’s a good sign that the White House is taking real leadership on this issue and is ready to direct all of the federal agencies (including the Army Corps of Engineers) to solve this problem.

Finally, here are some highlights of the media coverage this week, focusing on the Supreme Court’s order denying the preliminary injunction and the feds’ admission of more Asian carp DNA past the electric barriers:

• Chicago Tribune (John Flesher, AP)
• New York Times (Gabriel Nelson, Greenwire)
• Detroit News (Jim Lynch)
• Detroit Free Press (Tina Lam)
• Milwaukee Journal Sentinel (Dan Egan)

Supreme Court denies Michigan’s request to take immediate action on Asian carp

The U.S. Supreme Court today denied Michigan’s request to take immediate action to stop Asian carp from reaching the Great Lakes.  In a one-line order (go to page 3), the Supreme Court denied the State of Michigan’s motion for a preliminary injunction, siding with the State of Illinois, the federal government (essentially the U.S. Army Corps of Engineers), and the Metropolitan Water Reclamation District of Greater Chicago.  While the Supreme Court did not issue an opinion explaining its decision, it’s fair to assume that the Court was persuaded by the brief filed by the Solicitor General on behalf of the United States.  The federal government sided with Illinois and asserted that the federal government is already doing everything possible to protect the Great Lakes from Asian carp (a doubtful assertion at best).

Legally, the matter is by no means over.  The Supreme Court did not rule on Michigan’s petition for a new decree under the old Chicago diversion case, Wisconsin v. Illinois, or on Michigan’s alternative request to open a new case.  A decision on Michigan’s petition could come soon, or still be months away.  Michigan and the other concerned Great Lakes states could also file a separate lawsuit in a lower federal court, and environmental groups could pursue relief against Illinois and the Metropolitan Water Reclamation District of Greater Chicago in state court.

But as a practical matter, any future legal decisions may come too late to protect the Great Lakes from Asian carp.  Without a preliminary injunction ordering immediate action, the carp may continue to migrate towards the Great Lakes while the legal case is pending. 

Michigan and the other Great Lakes states may still get their day in court, but it could be a day too late for Great Lakes fisheries.

Sadly, the best immediate hope right now is for a political solution.  Michigan Attorney General Mike Cox, who has led the legal fight on behalf of the Great Lakes, has already publicly requested a meeting with President Obama.  I’ve heard that Michigan Governor Jennifer Granholm and Wisconsin Governor Jim Doyle have now made a similar request.  Meanwhile, Illinois’ senior senator, Dick Durbin, has publicly stated his desire for all of the parties to “meet in the halls of Congress and come up with a real solution.”  I’m skeptical of any solution emerging from the “halls of Congress” (perhaps Senator Durbin can find solutions to global warming – not to mention the budget and health care - while he’s looking around the halls of Congress), but I hope Congress can find the will to do its job when it's needed most. 

And we shouldn’t let President Obama off the hook either.  He directs the Executive Branch, including the U.S. Army Corps of Engineers and the other relevant federal agencies (EPA, Fish & Wildlife Service, NOAA, USGS).  If President Obama wants to establish his leadership on Great Lakes protection beyond spending money, now’s his chance.

Update: Dan Egan of the Milwaukee Journal Sentinel reports that DNA samples show that Asian carp are now in Lake Michigan

Michigan Attorney General Mike Cox launches Stop Asian Carp website for public outreach

Michigan Attorney General Mike Cox has created a Stop Asian Carp website – www.stopasiancarp.com – to educate the public about this threat facing the Great Lakes.  The website itself is a very useful resource, with primary documents, news coverage, and lots of background information.  I’m also impressed with how Michigan’s Attorney General is serving as an advocate for the Great Lakes on this issue beyond the courtroom.  Good advocacy begins with public outreach and education, and Mike Cox is building public support for this important work by taking his message directly to citizens. 

United States and Illinois file briefs opposing Michigan’s call to close the Chicago Canal locks

The State of Illinois, the United States, and the Metropolitan Water Reclamation District of Greater Chicago have filed their respective responses to Michigan and the other Great Lakes states in the U.S. Supreme Court.  (I’ve created a separate post with all Supreme Court filings involving the Asian carp at www.greatlakeslaw.org/blog/2010/01/supreme-court-asian-carp-filings.html.) 

I didn’t see any surprises in their responses – basically all three government defendants are arguing that (1) the Supreme Court should not get involved in the Asian carp crisis; (2) federal, state, and local governments are already doing everything possible to stop the spread of Asian carp into the Great Lakes; and (3) the risk of Asian carp entering the Great Lakes is overblown anyway. 

My first take is that the defendants’ attempt to minimize the risk of Asian carp entering the Great Lakes undermines their credibility about how serious they are in responding to this threat.  The defendants seek to discredit the DNA testing relied on by Michigan to show that Asian carp are close to the Great Lakes, but at the same time brag about how they poisoned a six mile stretch of water killing all aquatic life in an extreme effort to keep the carp away.  The truth is that the defendants have the same concerns about Asian carp getting into the Great Lakes as Michigan and the other states, but they are just not willing to take the steps needed to solve the problem.

The bigger issue here is that the United States has entered this dispute squarely in support of the Army Corps of Engineers and State of Illinois.  The United States should be supporting the efforts of Michigan, Ohio, Wisconsin, Minnesota, and New York in demanding immediate action to stop the threat of Asian carp entering the Great Lakes.  As a candidate, President Obama pledged a “zero tolerance” policy on invasive species in the Great Lakes, but this action totally contradicts that rhetoric.  In the Supreme Court, the United States is presenting the interests of its most environmentally irresponsible agency – the Army Corps of Engineers – and ignoring broader long-term interests shared by the U.S. EPA, Fish & Wildlife Service, and many members of Congress.  The fact is that Asian carp are here because of mistakes by the federal government, and now that same federal government is telling the Supreme Court and five Great Lakes states to let the Army Corps keep doing whatever it wants.  That’s not the change we were promised.

Update: For coverage of the political fallout of the Obama administration siding with Illinois in the Asian carp dispute, see today’s coverage by Dan Egan of the Milwaukee Journal Sentinel.

Supreme Court Asian Carp Filings

This post provides links to all of the Supreme Court filings regarding the Asian carp dispute, and will be updated as new filings are made.

Supreme Court - Order Denying Michigan's Motion for Preliminary Injunction (go to page 3)

State of Michigan – Motion and Petition to Reopen Wisconsin v. Illinois

State of Michigan – Motion for Preliminary Injunction

State of Michigan – Appendix

State of Michigan – Renewed Motion for Preliminary Injunction

State of Michigan – Appendix to Renewed Motion for Preliminary Injunction

State of Ohio – Memorandum Supporting Michigan’s Petition to Reopen

State of Minnesota – Brief in Support of Michigan’s Motion for Preliminary Injunction

State of Wisconsin – Response Supporting Michigan’s Motion for Preliminary Injunction

State of New York – Response Supporting Michigan’s Motion for Preliminary Injunction

Province of Ontario – Amicus Curiae Brief Supporting Michigan’s Motion for Preliminary Injunction

State of Illinois – Response Opposing Michigan’s Motion for Preliminary Injunction

State of Illinois – Appendix

United States – Memorandum Opposing Michigan’s Motion for Preliminary Injunction

United States - Appendix

United States - Supplemental Letter regarding Positive eDNA Samples

Metropolitan Water Reclamation District of Greater Chicago – Response Opposing Michigan’s Motion for Preliminary Injunction

Metropolitan Water Reclamation District of Greater Chicago – Appendix

 

State of Wisconsin joins other states in Supreme Court fight asking for preliminary injunction to protect the Great Lakes from Asian carp

Wisconsin Attorney General J.B. Van Hollen and the Wisconsin Department of Justice have now joined the U.S. Supreme Court fight over the Chicago Canal and Asian carp, supporting Michigan’s request for a preliminary injunction.  Wisconsin has filed a brief with the Supreme Court explicitly supporting Michigan’s call to close the key locks on the Chicago Canal and connecting channels, operate electric barriers in the canal at full strength, and monitor for Asian carp and eradicate any Asian carp found until a long-term solution is reached. 

Wisconsin joins Minnesota in supporting Michigan’s motion for a preliminary injunction; Ohio has filed a more modest memo with the Supreme Court supporting Michigan’s petition to reopen the Chicago diversion decree.  Illinois’ response to the request for a preliminary injunction is now expected by January 5.  For more on Wisconsin’s action, see coverage by Dan Egan of the Milwaukee Journal Sentinel. 

Update: I’ve created a new category of posts on Asian Carp and the Chicago Canal Litigation at www.greatlakeslaw.org/blog/asian-carp/.

State of Minnesota joins Michigan in asking Supreme Court for a preliminary injunction to protect the Great Lakes from Asian carp

Minnesota Attorney General Lori Swanson has filed a brief in the U.S. Supreme Court on behalf of the state of Minnesota supporting Michigan’s motion for a preliminary injunction to protect the Great Lakes from Asian carp pending a reopening of the Wisconsin v. Illinois original action.  The Supreme Court may take up the motion at its January 8, 2010 conference.  The state of Ohio has also filed a short memorandum with the Supreme Court supporting Michigan’s petition to reopen the case and modify the 1967/1980 Chicago diversion decree.  Later this week, I expect the state of Illinois will respond to the motion, perhaps offering a glimpse of its arguments in favor of keeping the Chicago Canal open, despite the risk it creates for allowing invasive Asian carp to enter the Great Lakes.

Meanwhile, popular support for taking effective action to prevent the Asian carp from entering the Great Lakes through the Chicago Canal is building.  The New York Times ran an editorial that summed things up nicely:

The only sure way to stop carp — and whatever other invasive species are waiting — is to close the canal and again separate the Mississippi and Great Lakes watersheds. That would be hugely costly and politically difficult, given the importance of shipping to the region.

Closing the canal locks temporarily, while expensive and disruptive, is probably the best way to buy time until a solution can be devised that does not place an immense, fragile ecosystem entirely at the mercy of waterborne shipping. There isn’t a lot of time left to act.

Michigan lawmakers to join legal fight over Asian carp in the Supreme Court

Two leading Michigan state lawmakers have announced that they intend to file a brief supporting Michigan’s lawsuit in the Supreme Court against Illinois over Asian carp.  Senator Patty Birkholz (R-Saugatuck), chair of the Senate Natural Resources and Environmental Affairs Committee, and Representative Rebekah Warren (D-Ann Arbor), chair of the House Great Lakes and Environment Committee, have joined together in a bipartisan effort to protect the Great Lakes from Asian carp.  They made the announcement just one day after Michigan filed its petition and motion for preliminary injunction in the Supreme Court.  Senator Birkholz’s announcement is here;  Representative Warren’s announcement is here.

Senator Birkholz and Representative Warren have exceptionally strong records of protecting the Great Lakes from invasive species.  Senator Birkholz was the lead author of the Michigan law that regulates ballast water discharges in the Great Lakes to prevent the spread of invasive species.  When shipping companies brought a Constitutional law challenge against the ballast water regulations, Senator Birkholz and other legislative leaders joined the State of Michigan in successfully defending the regulations in federal court.  I represented Senator Birkholz and the other legislative leaders through the Great Lakes Environmental Law Center, and we got a great result in the fight against invasive species.

Senator Birkholz and Representative Warren earlier this month sponsored resolutions, passed by both the Michigan Senate and House, calling on the federal government to take immediate action to protect the Great Lakes from Asian carp.  But the federal government has failed to take the necessary action, so the Michigan lawmakers will join the state’s Attorney General in bringing the fight to the Supreme Court.

I’m honored to be representing these two legislative leaders through the Great Lakes Environmental Law Center.  The Supreme Court won’t be considering Michigan’s petition and motion for preliminary injunction until early January, so it’s not yet clear how the case will proceed.   

The carp case brings national attention to the Great Lakes:

The Asian carp case has gotten national attention, with coverage in the New York Times and many other major newspapers.  The New York Times website also has an excellent story on the case from Greenwire. 

And the case brings calls from environmental advocates for a long term solution:

Environmental advocates are looking at the dispute as an opportunity to explore long term solutions to protect the Great Lakes with alternatives to the Chicago diversion.  Thom Cmar, an attorney with the Natural Resources Defense Council in Chicago, has been a leader in the legal battles over invasive species in the Great Lakes and writes about the case on NRDC’s Swichboard blog.  Like Thom, Andy Buchsbaum of the National Wildlife Federation sees the case as chance to rethink the Chicago diversion, which he calls the “single biggest threat” to the Great Lakes.  I completely agree, as this crisis presents an opportunity to develop a modern solution to water management, navigation, and invasive species protection in the Great Lakes region.

Ohio to join Michigan in Supreme Court case against Illinois:

Ohio Attorney General Richard Cordray has announced that the State of Ohio will join Michigan in petitioning the Supreme Court to reopen the case against Illinois, the U.S. Army Corps of Engineers, and the Metropolitan Water Reclamation District of Greater Chicago. (Thanks to Dick Bartz, formerly a senior official with the Ohio DNR, for bringing this to my attention.)

Update: Ohio Attorney General Richard Cordray has now filed a short memorandum with the Supreme Court supporting Michigan’s petition to reopen the case and modify the 1967/1980 Chicago diversion decree.

Michigan files suit against Illinois in the Supreme Court over Asian carp

Michigan Attorney General Mike Cox has filed suit in the U.S. Supreme Court on behalf of the State of Michigan against the State of Illinois for allowing Asian carp to potentially invade the Great Lakes through the Chicago Canal and other managed waterways.  Technically, this is not a new lawsuit, but a petition for a new Supreme Court decree (basically an order) under the old Chicago diversion case, Wisconsin v. Illinois.  That case, which has gone on for nearly a century and primarily involves Chicago’s diversion of Lake Michigan water out of the Great Lakes basin, expressly allows the parties (including Michigan) to petition the Supreme Court for a new decree (see paragraph 7 of the 1967 decree, as amended in 1980). 

For background on the Asian carp invasion and the Chicago Canal (with a nice diagram map), see my previous posts and media coverage here and here.  As this may be the first ever interstate nuisance action over invasive species before the U.S. Supreme Court, a short background on the legal issues may be useful.

The State of Michigan is filing a petition for a Supplemental Decree declaring that the current condition of the Chicago Canal and other related waterways that link the Mississippi River with the Great Lakes, as maintained by State of Illinois (along with the Metropolitan Water Reclamation District of Greater Chicago and the US Army Corps of Engineers) are unlawful.  (Michigan’s petition/brief is available here and the joint filed appendix is here).  Michigan is asking the Supreme Court to declare:

“that to the extent the facilities created, operated, and maintained by [the State of Illinois and the Army Corps] in connection with the diversion now allow the introduction of harmful aquatic invasive species into Lake Michigan and other connected waters, they constitute a public nuisance.  Those facilities create a threat of irreparable injury to natural resources held in trust by the State of Michigan, as well as riparian and other rights of Michigan and its citizens.”

Michigan makes clear in its petition that it is not seeking to alter the quantity of water being diverted from Lake Michigan for Chicago’s public water supply, but rather “modification of the means created and maintained by [Illinois] and the [Army] Corps to accomplish the diversion.”

Michigan has also filed a motion for a preliminary injunction to (1) close some of the locks on the Chicago Canal and connecting channels, (2) operate electric barriers in the canal at full strength, and (3) monitor for Asian carp and eradicate any Asian carp found.  Several passages from Michigan’s motion for preliminary injunction explain perfectly what’s at issue in this litigation:

“The states and Canadian provinces bordering the Great Lakes, and everyone that uses the Great Lakes for recreation or commerce, face a dire threat to this unique and irreplaceable resource, the largest freshwater system in the world. It is well documented that silver carp and bighead carp – huge by freshwater standards, voracious and prolific – pose a real potential to wipe out native species of fish in any waterway that the carp, each a species of Asian carp, comes to inhabit. These fish, near the end of an unrelenting march up the Mississippi River from Mississippi and Arkansas – are literally at the threshold of Lake Michigan, swimming in the rivers and canals near Chicago.
****

The urgent need for action cannot be overstated. Partial measures are no longer an option. The remaining obstacles between the carp and Lake Michigan are the navigational locks and other structures operated by the Corps and the [Metropolitan Water Reclamation District of Greater Chicago]. If [Illinois and the other defendants] continue the current operation of these structures, particularly the locks, Asian carp will pass through these structures, and inevitably enter the Great Lakes system. Further, there are additional potential pathways provided by the Des Plaines River flooding and the Grand and Little Calumet Rivers. Given the rapid advance of these fish up the Mississippi River, there is no reason to believe that this invasion is not imminent.

If the carp make it to Lake Michigan, the environmental and economic disaster to follow may take some time to develop, but is virtually certain.”

While the implications of this case are tremendous, the background legal issues involved are fairly well-settled.  Under the U.S. Constitution (Article III, Section 2, Clause 2), the U.S. Supreme Court has original jurisdiction to hear disputes between states.  The Supreme Court has exercised this jurisdiction in the ongoing case over the Chicago diversion, Wisconsin v. Illinois, to which Michigan is a party and the U.S. federal government is an intervenor.  Since Michigan is seeking new relief involving the waterways and canals that Illinois and the other defendants operate pursuant to the Wisconsin v. Illinois decree, Michigan is on very solid legal ground to bring this case directly to the U.S. Supreme Court.

The Supreme Court will be faced with a classic interstate nuisance dispute.  This is nothing new - the Supreme Court’s first forays into environmental law were to resolve interstate pollution disputes,  and before the development of modern statutory environmental law in the 1970’s, the federal government’s primary tool for addressing interstate environmental harms was adjudication of disputes between states.  The Supreme Court will make a fact-specific inquiry (aided by a special master) to balance the competing interests of Illinois in keeping the Chicago Canal open against the interests of Michigan (and other Great Lakes states that may join the action) in protecting the Great Lakes fisheries from invasive Asian carp.  I’ve prepared a background paper on interstate environmental nuisance cases before the U.S. Supreme Court with more details on prior Supreme Court cases and applicable law.

Based on Michigan’s brief (and the supporting info in the appendix), it seems that Michigan can clearly demonstrate that the potential harm from the Asian carp invading the Great Lakes far outweighs the costs and burdens of closing the canal locks.  While closing the canal locks will cost the shipping industry and its customers substantial money (tens of millions of dollars), letting the Asian carp in could cost Michigan and other states far greater sums (billions of dollars) in harm to the Great Lakes fisheries.  Michigan’s motion for a preliminary injunction also makes a compelling case, especially with regard to the “irreparable harm” from allowing the Asian carp to enter the Great Lakes while the litigation is pending.

I know that Michigan’s Attorney General, Mike Cox, is currently running for the Republican nomination in the 2010 election to decide Michigan’s next governor.  Mike Cox is no political novice, and it would be simple to dismiss this lawsuit as a political move to gain support from Michigan’s many fisherman and boaters who are terrified of Asian carp invading the Great Lakes.  But Mike Cox has a strong record of legal action to protect the Great Lakes from invasive species.  And more importantly, the petition and other filings demonstrate that the Attorney General has a through, well-researched, and persuasive legal argument.  Mike Cox and his staff are doing the right thing, in the right way, at the right time.  While some politicians are sending letters, pointing fingers, or doing nothing at all, Mike Cox should be commended for taking reasoned, decisive legal action to protect the Great Lakes. 

For more info, see additional coverage from John Flesher of the Associated Press.

Great Lakes on the Ground – new blog by Andy Buchsbaum of the National Wildlife Federation

Here’s a great new blog for you to bookmark or put on your RSS feed - Great Lakes on the Ground (www.greatlakesontheground.wordpress.com).  It’s authored by Andy Buchsbaum, Regional Executive Director of the National Wildlife Federation’s Great Lakes office.  I’ve known Andy since I was in law school and had the pleasure of working with him for several years at NWF.  Andy has been personally involved in every major Great Lakes issue this decade, most recently leading the Great Lakes restoration effort on behalf of the environmental community.  He describes himself as a “recovering attorney” and before coming to NWF was a prominent and highly effective public interest environmental litigator. 

Andy’s Great Lakes on the Ground blog has been up for almost a month now, and most of his posts have focused on the Asian carp mess, and more importantly solutions moving forward.  I expect his blog will be a valuable and interesting source of information and provide an insider’s perspective on Great Lakes policy issues.

Unfortunately, not all blogging news is good, and Andy’s new blog comes (coincidentally) at the same time that Dave Dempsey’s Great Lakes Blogger is ending.  It’s no secret that Dave and I have had some policy disagreements over the years, but he is always thoughtful – and thought provoking.  Dave is first and foremost an advocate for the Great Lakes, and his passion for the Great Lakes is evident in his blogging and books.  He can be critical of not only polluters and politicians, but also environmental groups and the media – and with Dave’s experience, I always took his criticisms seriously.  I hope Dave will return to blogging and writing down the road, and that many others will exercise their freedom of speech to join these debates and speak up for the Great Lakes in any forum.

The Evolution of the Law and Politics of Water

 

Apologies for the shameless shilling of a product, but if you are looking for a last-minute holiday gift for the water wonk in your life, consider the new book, The Evolution of the Law and Politics of Water.  (I contributed a chapter on the Great Lakes but don’t get any royalties, although I did get one free copy of the book to put on my shelf.)  Here’s the description from the publisher (Springer):

The Evolution of the Law and Politics of Water presents an overview of global trends in water law and policy and assesses current global water governance. It provides an historic understanding of how and why after 5,000 years of water governance, that governance still has not reached stability. It identifies the key research questions for water law and policy while providing an overview of the current global water governance regime, its evolving characteristics, and the legal theories involved in these changes. It focuses on water law and discusses the characteristics of national, supranational, and international water law through a combination of case studies and thematic chapters.

The Evolution of the Law and Politics of Water is the first volume to take a global perspective on the evolution of water law and policy. It describes global patterns and sets forth the particulars of eight national legal systems drawn from every continent and five regional or supranational systems, as well as the body of customary international law as a whole. In particular, it is the first book to explore the interrelation between culture, religion, government and law in water governance and management. The volume is, therefore, a must-read for anyone interested in how water governance has changed through time and in different places as well as anyone interested in how water law has sought to channel water governance through time and in different places and what variables account for the relative success (or lack of success) of water law in performing this channelling function. It is suggestive of possible lines of water law reform and whether a particular reform is likely to be successful.

The book is edited by Joe Dellapenna and Joyeeta Gupta and features some of the leading water law scholars covering water policy across history, religion, culture, and geography.  Check out the table of contents:

Part I - Introduction
1. The Evolution of Global Water Law (Joseph W. Dellapenna and Joyeeta Gupta)
2. Mesopotamia: A History of Water and Law (Itzchak E. Kornfeld)
3. Islamic Law and the Politics of Water (Thomas Naff)
4. Water in the Jewish Legal Tradition (Richard Laster, Rabbi David Aronovsky, and Dan Livney)

Part II - Evolving National Law and Politics
5. Brazil: The Evolution of the Law and Politics of Water (Paulo José Leite Farias)
6. South Africa: The Development of Water Law (Michael Kidd)
7. East African Water Regimes: The Case of Kenya (David Nilsson and Ezekiel Nyangeri Nyanchaga)
8. Israel: The Evolution of Water Law and Policy (Richard Laster and Dan Livney)
9. Russia: Historical Dimensions of Water Management (Vladimir Kotov)
10. India: Evolution of Water Law and Policy (Philippe Cullet and Joyeeta Gupta)
11. Australia: The Problem of Sustainability in Water (Jennifer McKay and Simon Marsden)
12. United States: The Allocation of Surface Waters (Joseph W. Dellapenna)
13. United States: The Emergence of Environmental Considerations (Sandra Zellmer)

Part III - Evolving Supranational and Regional Water Law and Politics
14. European Community Water Policy (Paulo Canelas de Castro)
15. Southern Africa: Evolving Regional Water Law and Politics (Pieter van der Zaag)
16. The Jordan Basin: Evolution of the Rules (Robbie Sabel)
17. The North American Great Lakes (Noah D. Hall)
18. The Río de la Plata Basin (Griselda D. Capaldo)

Part IV - Current Trends in International Water Law
19. Case Law on International Watercourses (Lilian del Castillo-Laborde)
20. International Cooperation on Water Resources (Maria Manuela Farrajota)
21. Public Participation in Water Governance (Jona Razzaque)
22. The Market Alternative (Joseph W. Dellapenna)

Part V - Conclusions
23. The Challenges for the Twenty-First Century: A Critical Approach (Joyeeta Gupta and Joseph W. Dellapenna)

Your local bookstore (if you are lucky enough to still have a local bookstore) can order it from Springer.  Alternatively, Amazon is currently selling it almost 40% off list price.

Climate change torts - a perspective from an energy industry attorney

Tort law, which is traditionally used to protect property or collect monetary damages, is now being used with some initial success against electric utilities and coal, oil, and chemical companies for climate change harms from greenhouse gas emissions.  Two recent federal appeals decisions have opened the door to climate change torts, and more litigation is on the horizon.  The following guest post gives an inside perspective on climate change torts from an energy industry attorney (the attorney asked to remain anonymous for client confidentiality).

Last week, defendants in one of a handful of closely watched global-warming lawsuits sought rehearing en banc [a rehearing before a full panel of the circuit court] of a decision from the United States Court of Appeals for the Fifth Circuit, Comer v. Murphy Oil, No. 07-6-756 (5th Cir. Oct. 16, 2009).  [The petitions for rehearing en banc filed by the numerous defendant oil, energy, and coal companies are available here, here, here, and here.] 

Comer involves claims brought by residents of Mississippi against dozens of companies in the energy, fossil fuel production, and chemical industries, seeking money damages for injuries apparently sustained during Hurricane Katrina in 2005.  Comer is the latest federal court decision allowing purported tort claims alleging wide-ranging damages from climate change to proceed past key threshold stages.  The panel’s ruling follows on the heels of a Second Circuit decision, Conn. v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009) (“AEP”), permitting similar alleged tort claims to go forward.  The primary differences between the cases are that AEP involves claims under the federal common law and seeks injunctive relief in the nature of a declining cap on defendants’ carbon dioxide emissions, whereas Comer purports to be based in Mississippi common law and seeks monetary relief for alleged property damage resulting from Hurricane Katrina.  Although only a few data points exist, the panel’s decision also suggests a pattern to these so-called climate-change cases. 

Four district courts have now dismissed analogous global-warming tort claims on the grounds that they either raise nonjusticiable political questions or that the plaintiffs lack standing to maintain a lawsuit for alleged global-warming damages.  See Native Vill. Of Kivalina v. ExxonMobil Corp., No. C08-1138SBA (N.D. Cal. Sept. 30, 2009); Cal. v. General Motors Corp., 2007 WL 2726871 (N.D. Cal. 2007), appeal dismissed, No. 07-16908 (9th Cir. June 24, 2008); Comer v. Murphy Oil, No. 1:05-cv-00436-LG-RHW (S.D. Miss. Aug. 30, 2007); Conn. v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005). 

In contrast, two appellate courts, the Second Circuit in AEP and the Fifth Circuit in Comer, have refused to allow the principle of separation of powers or the standing doctrine to defeat resolution of the plaintiffs’ global-warming grievances in an Article III court.  The courts of appeal have ardently insisted that the judiciary has the tools and competence to resolve such claims, and they are unwilling to let the claims be defeated at an early stage where plaintiffs have purportedly asserted at least some relationship between their alleged injuries and the defendants’ alleged contribution to global warming. 

The disparity between the opinions issued by the district courts and the courts of appeal is probably not surprising.  It is the district courts, after all, that would need to determine precisely how to try these cases, were they to go forward.  They are not approaching the cases abstractly or academically, but rather are faced directly with the formidable questions that such cases pose.  Just how would principles of tort law apply to a case involving global warming?  By what method would the court decide whether a particular company’s emissions (or supposed contribution to emissions, for example, by producing a fossil fuel that is later combusted by a third party) are “reasonable” – a bedrock principle in tort law – especially given the lack of statutes or regulations that might guide the answer to such a question?  How would the court determine whether a particular company’s activities or emissions were the “proximate” cause of asserted global-warming damages, including property damage from a Hurricane that is alleged to have been fueled in strength by global warming-heated ocean waters?  And how would the court apportion damages given that every entity on the planet emits one or more greenhouse gases – and has done so for centuries.

As the defendants’ petitions for rehearing en banc argue, the panel’s decision in Comer hardly grapples with the foregoing questions.  Indeed, the panel construed applicable case law largely so it would not have to.  In reviewing the district court’s decision dismissing the plaintiffs’ claims pursuant to the political question doctrine, for example, the panel found the traditional six-part test, articulated by the Supreme Court in Baker v. Carr, 369 U.S. 186, 210 (1962), “not necessary or properly useful” in the case.  It determined that the district court had erred in dismissing the case pursuant to Baker because a political question may only exist in cases that involve a question that is committed to the political branches by the Constitution or a federal statute, which Comer does not.  By doing so, petitioners argue, the panel effectively circumvented the need to fully analyze, for example, Baker factors two and three, which four district courts have previously recognized render global-warming tort actions nonjusticiable.  Those factors counsel dismissal when there is a lack of judicially discoverable and manageable standards for resolving a case and when it would be impossible to decide a case without an initial policy determination of a kind clearly for nonjudicial discretion. 

Furthermore, the defendants’ petitions for rehearing en banc argue that the panel engaged in a cursory and flawed analysis of Article III standing.  The panel apparently accepted, at face value, an implausible causal chain, in derogation of the pleading requirements recently articulated by the Supreme Court in Bell Atl. Corp v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).  Furthermore, it misconstrued the Supreme Court’s decision in Massachusetts v. EPA as applicable to the case, even though Massachusetts involved a procedural challenge under a federal statute asserted by a State party – neither of which is true in Comer.  The panel’s decision on standing thus arguably relaxes relevant requirements beyond what even the Supreme Court’s slim majority is willing to recognize as sufficient under Article III.  Finally, the petitioners argue that the panel relied inappropriately on Clean Water Act case law, predominantly from the Third and Fourth Circuits, and ignored the Fifth Circuit’s binding precedent demanding a geographic or other causative nexus between the plaintiffs’ injuries and the defendants’ activities.  The plaintiffs’ so-called tort claims – rooted in the assumption that the defendants are liable simply for engaging in activities that contribute to the emissions of gases that mix in an undifferentiated fashion in the atmosphere – seemingly involve no nexus at all and, thus, fail to meet the Fifth Circuit’s strict test for standing. 

Although rehearing en banc is not common, Comer arguably represents just the kind of case that warrants full panel review – both for the unique and exceptional issues it raises – which implicate interests well beyond those of the named defendants – and for the departure it represents from settled law.  In a promising sign for petitioners, on December 2, the Fifth Circuit exercised its discretionary authority to direct the plaintiffs to file a response to the defendants’ petitions by December 14.  If rehearing en banc is not granted, the next stop might be the Supreme Court.

US EPA issues finding that greenhouse gas emissions threaten public health and welfare, triggering new regulations under the Clean Air Act

As expected, the US EPA this week took two formal actions finding that: (1) greenhouse gases threaten public health and welfare; and (2) greenhouse gas emissions from motor vehicles contribute to the greenhouse gas pollution which threatens public health and welfare.  The details of the EPA’s “endangerment findings” are available on the EPA’s climate change regulatory initiatives webpage.

These findings have been nearly inevitable ever since the U.S. Supreme Court’s Massachusetts v. EPA decision in 2007, which held that greenhouse gases are pollutants under the Clean Air Act and that the EPA must either issue an endangerment finding or justify a decision not to do so.  With the overwhelming scientific data and studies demonstrating the harm from greenhouse gas pollution and climate change (heat waves, reduced freshwater supplies, coastal flooding, harmful air quality, infectious diseases, etc.) the endangerment finding was the only lawful outcome. 

While the endangerment finding does not on its own impose new restrictions on greenhouse gas emissions, it does trigger several regulatory requirements under the federal Clean Air Act.  Most immediately, the endangerment finding allows the EPA to finalize its proposed greenhouse gas emission standards for light-duty vehicles, which will require far more efficient cars and trucks (up to 35 mpg) in coming years.  The endangerment finding will also likely lead to new restrictions on greenhouse gas emissions from large stationary sources, such as coal-fired power plants and garbage incinerators.

I don’t want to dismiss the importance of the United Nations Climate Change Conference in Copenhagen taking place over the next two weeks, but this action by the EPA will have more immediate and tangible implications for reducing greenhouse gas emissions in the United States.  President Obama’s expected appearance in Copenhagen is a statement to the world that the US is committed to addressing climate change.  But this action by the Obama EPA does more than make a statement – it sets in motion the full power of the US EPA to regulate climate change pollution from cars, power plants, and other major sources.

Michigan’s Attorney General and environmental groups threaten legal action to stop carp invasion into Great Lakes

This week, Michigan Attorney General Mike Cox and numerous environmental groups have made public their respective intentions to pursue legal action to stop the imminent invasion of Asian carp into the Great Lakes via the Chicago Canal.  As detailed in my previous post, the terribly invasive Asian carp have come up the Mississippi River and into the Chicago Sanitary and Ship Canal that provides an artificial link to Lake Michigan.  DNA testing shows that invasive carp have likely breached the electric barrier installed by the US Army Corps of Engineers.  In a desperate attempt to prevent further invasion, government officials have dumped thousands of gallons of fish poison into the Chicago canal to kill Asian carp (and any other fish) while the electric barrier is shut down for maintenance.

Most fisheries experts believe that even if some Asian carp have breached the electric barrier, decisive action to prevent further carp invasion could make the difference for the future of the Great Lakes fisheries.  It’s clear that the Army Corps cannot provide adequate protection through an electric barrier, and poisoning the waters of the Chicago Canal can hardly be considered an ideal solution. 

At this point, the best short term option is to shut the Chicago Canal locks (see map in previous post) to provide a hard physical barrier against the carp’s migration.  Long term, it’s time to close down the Chicago Canal and restore the natural separation between the Mississippi River basin and the Great Lakes.  This won’t happen without a fight, and that fight may well take place in court if Attorney General Cox and environmental groups go forward with legal action.

Michigan Attorney General Cox sent a letter earlier this week to the U.S. Army Corps of Engineers, the State of Illinois, and the Metropolitan Water Reclamation District of Greater Chicago demanding that they take action, potentially including the closing of the locks.  In the letter, Cox indicated that he is prepared to take whatever legal action is necessary to protect the Great Lakes.  Attorney General Cox was urged to take legal action by Governor Granholm and environmental organizations.  (Attorney General Cox also sent Governor Granholm a response letter asking for information on the environmental and economic impact of the Chicago Canal and its potential closure.)  Henry Henderson, Director of the Natural Resources Defense Council’s Midwest Program in Chicago (and a former Commissioner of the Environment for the City of Chicago) has detailed the government’s failures to address this problem, the need to immediately close the locks and eventually close the Chicago Canal, and options for legal action.

Attorney General Cox and environmental groups have several legal options and claims.  First, because the Chicago Canal is operated pursuant to an ongoing U.S. Supreme Court decree regarding the Chicago water diversion (the historic Wisconsin v. Illinois cases), any of the parties to the historic litigation (including the State of Michigan) can petition the Supreme Court for relief to protect the Great Lakes from Illinois’ operation of the canal.  Second, states and environmental groups could bring an action for public nuisance (for more on public nuisance, see this post on a recent case from the Second Circuit involving climate change pollution).  Finally, if the invasive carp would harm threatened and endangered species in the Great Lakes, the hammer of an Endangered Species Act lawsuit is a potential option.

Regardless of what legal options are pursued, it’s clear that this issue will only be solved through aggressive legal action.  The government agencies that were supposed to be protecting the Great Lakes (notably the Army Corps of Engineers, the US EPA, and the state of Illinois) have shown a lack of will and/or lack of ability to do what needs to be done.  Meanwhile, as detailed by Gary Wilson at the Great Lakes Town Hall website, Congressional leaders are only offering symbolic gestures and no real action or regulatory solutions.  Hopefully, legal action will lead to: (1) closing the locks immediately; (2) closing the Chicago Canal and restoring the natural separation of the Great Lakes from the Mississippi River system; and (3) once this current crisis is under control, a detailed look at how and why our government agencies have once again failed to protect our Great Lakes from invasive species.

Update: The Detroit Free Press reports that Attorney General Cox is preparing to file suit, possibly in the U.S. Supreme Court pursuant to Wisconsin v. Illinois (the Chicago diversion case)

Great Lakes on the brink of Asian carp invasion thanks to “monumental government screwup”

Asian carp are poised to enter the Great Lakes, and may already be within the watershed, thanks to a series of disastrous decisions and mistakes by state and federal government agencies.  Scientists have collected DNA evidence showing that two distinct species of invasive Asian carp – the bighead carp and the silver carp – have made their way up the Mississippi River system and past the ineffective electric barriers operated by the Army Corps of Engineers.  The electric barriers were supposed to keep the Asian carp from entering the shipping canal that artificially links the Mississippi River system with Lake Michigan and the Great Lakes.  But delays, operating mistakes, and lack of political will by the Army Corps to protect the Great Lakes from this devastating invasive species could mean that Great Lakes fisheries will never be the same.

The history of this problem is a telling and angering example of how state and federal agencies – often the same agencies entrusted with environmental protection and natural resource conservation – have put the interests of a few politically connected Arkansas agribusinesses and shipping companies ahead of the millions of citizens that value a healthy Great Lakes fishery.  Over three years ago, Dan Egan of the Milwaukee Journal Sentinel wrote an extensive three part investigative story – Troubled Waters: The Asian Carp Invasion – detailing the how the U.S. Environmental Protection Agency and Arkansas Game and Fish Commission were responsible for this ecological disaster.  The entire series is worth the time to read – Part 1: Chaos uncorked, Part 2: Unwanted bounty, and Part 3: Last line of defense.  Eric Sharp of the Detroit Free Press also has a good short history of the debacle, which he summarizes as a “monumental government screwup”.

The historic mistakes of the US EPA (which thought the carp could help treat sewage) and state officials in Arkansas (looking out for their agribusiness industry) resulted in the invasive Asian carp taking over many stretches of the Mississippi River system.  The Asian carp can be huge – often over 50 pounds – and eat up to 40% of their body weight daily, ravaging the natural ecosystem.  Because the Chicago Sanitary and Ship Canal provides an artificial link between the Mississippi River system and Lake Michigan, for years conservationists have feared that the carp would make their way up the river and into the Great Lakes.  The Army Corps of Engineers was supposed to build an effective electric barrier, but the project became another disaster of delays and ineptitude, with the electric barrier never operating at the full strength required, due to opposition from the few shipping companies that use the Chicago Canal.  As a result, the Asian carp have now breached the electric barrier and are moving towards Lake Michigan.

At this point, the only hope is to close the locks and prevent any further spread of the Asian carp up the Chicago Canal.  The next step is then to close the Chicago Canal and restore the natural separation between the Mississippi River system and the Great Lakes.  Government won’t do this on its own initiative, as the relevant agencies are clearly too reactive and beholden to shipping interests to take aggressive action to protect the Great Lakes.  Unfortunately, these are the same agencies that will be getting millions of taxpayer dollars from Congress and President Obama to “restore” the Great Lakes from invasive species.  Once again, it seems the federal government would rather throw money – ineffectively – at the problem than take proactive action to prevent the problem from occurring or getting worse.  The national environmental organizations have so far been reluctant to criticize the Obama administration, but while this problem has historic roots, the current leadership of the EPA and Army Corps of Engineers should be held accountable for their recent mistakes.  Moving forward, we need to decide if the health of the Great Lakes fisheries is more important than a few shipping companies operating on an outdated canal.

Update: Additional coverage from the Washington Post by Kari Lydersen and Peter Slevin

New study shows that black Americans in Midwestern metro areas are far more likely to live within a mile of a polluting industrial facility than white Americans

A new study has provided empirical evidence of what many environmental justice advocates have long known – black Americans are far more likely to live near pollution than white Americans.  The disparity occurs in most parts of the country, and in cities, suburbs, and urban areas.  However, the racial injustice is most terrible in Midwestern metro areas, where black Americans are almost twice as likely to live within a mile of a major pollution source as white Americans.

The study, led by Prof. Paul Mohai of the University of Michigan School of Natural Resources and Environment (one of my first college profs), was just published in the American Journal of Public Health (full download available here).  The methodology is detailed in the article, but basically consisted of correlating survey data on race, income, and other demographic factors with residences within one mile of polluting facilities identified with EPA Toxic Release Inventory data.  This is admittedly an imperfect proxy for exposure to pollution, but produces a telling snapshot of how race is correlated with environmental health risks.

The study found 58 percent of black Americans in Midwest metropolitan areas lived within a mile of a polluting industrial facility compared to only 35 percent of white Americans.  Similar disparities were found between the races in the South and West, but not Northeast.  While income levels were also correlated to living near pollution, the racial divide was evident even after adjusting for socioeconomic and other demographic characteristics.  According to the study, the black-white disparity suggests that factors uniquely associated with race may be involved, such as housing segregation and the targeting of African-American communities to place sources of pollution.

This is an injustice in every sense of the term.  Remedying this ongoing problem should be a top priority for the EPA, states, and environmental advocates.  EPA Administrator Lisa Jackson has just created two new senior positions to address environmental justice and civil rights, appointing Lisa H. Garcia as senior adviser for environmental justice and Patrick Sungwook Chang as senior counsel for external civil rights. This is a promising sign that the EPA is finally taking environmental justice and civil rights seriously.  But far more is needed, especially at the state and local levels.  State regulators must reverse the trend of permitting pollution in areas that disproportionately affect black Americans and other racial minorities.  And environmental groups must partner with black churches and other neighborhood organizations on the front lines of environmental justice battles.  Being black should not destine an American to living with pollution.